Cossacks, Pussy Riot, and the Attribution of Conduct: A Comment on Verzilov v. Russia

On 29 August, a Chamber of the European Court of Human Rights delivered its judgment in Verzilov and others v. Russia (no. 25276/15). This is the second case before the Court to concern the Russian feminist punk band Pussy Riot, after Mariya Alekhina and Others v. Russia (no. 38004/12). Verzilov concerned an incident during the Sochi Olympics, when Pussy Riot members attempted to perform one of their songs (‘Putin Will Teach You to Love the Motherland’) behind a poster promoting the Olympics, but were prevented from doing so and assaulted verbally and physically, including through the use of corded whips, by several Cossack troopers. Here’s a video of the incident:

In Verzilov, the Court (unsurprisingly) found violations of Articles 3 (bodily integrity) and 10 (freedom of expression) of the European Convention. There is some interesting, but not terribly novel or controversial, analysis here, for example as to the ‘minimum of severity’ threshold of Article 3 (which the Court finds has been crossed – paras. 71-74, and later finds to have been degrading treatment – para. 95), and on the procedural duty under Article 3 to investigate allegations of ill-treatment (the Russian investigatory efforts, such as they were, were wholly unsatisfactory – paras. 75-82). Like in many situations of the use of (non-lethal) force, there is a contextual justification assessment as part of the Article 3 analysis, even though the prohibition of ill-treatment is an absolute right – i.e. the use of force against Pussy Riot members was contrary to their dignity and degrading in character because it could not be justified for any legitimate reason in the circumstances prevailing at the time.

But, (for me) the really interesting part of the judgment is the question of attribution – was the conduct of the Cossacks attributable to Russia, i.e. did they act as Russian state agents? Accordingly, was Russia being held responsible for itself committing treatment contrary to Article 3, that is, for a breach of a negative duty of restraint, or instead for breaching a positive obligation to prevent ill-treatment at the hands of private actors? The Court finds that the conduct of the Cossacks was attributable to Russia (paras. 83-90), but its reasoning on this point leaves something to be desired.

Why was this even an issue in Verzilov? Because the Cossacks in question were not employees of any Russian state organ (e.g. the police), but were rather members of a formal Cossack association, headed by an ataman, that was officially registered by the Russian state. Under applicable Russian legislation, Cossacks could perform some types of ‘state service’ in accordance with various domestic rules, and often in agreement with local authorities (for a detailed examination see paras 38-54 of the judgment). In particular, Cossacks could assist state authorities in the maintenance of public order (para. 49), and this was particularly the case under a regional law that applied at the time the incident in question occurred (para. 50). For the specific case of the Sochi Olympics, there was in fact an agreement between local state authorities and the relevant Cossack association, which provided that the association was (para. 53):

– to form from its members a Cossack guard composed of no fewer than fifty-five Cossacks for participation in the protection of public order in the territory of Sochi, the Cossack guard to become operational from 1 January 2014 in accordance with monthly rotas approved by the head of the Sochi police department;

–  to ensure that the members of the Cossack guard wore the Cossack uniform and carried their guard cards and badges with them;

–  to form the Cossack guard aiding the local authorities and the police in maintaining public order and protecting individuals, society and the State from unlawful infringements;

–  to form the Cossack guard aiding the police in preventing and suppressing offences, and in solving and investigating crimes; and

–  to ensure the participation of the Cossack guard in the education of citizens in the spirit of respect for the law and the rules of living together.

Now, if you’re an international lawyer reading this so far, and were asked to determine whether the conduct of the Cossacks assaulting the Pussy Riot members was attributable to Russia, you would say this: they were not de jure state organs of Russia, because they lacked such status under Russian domestic law (these Cossacks were not formally working for a state organ, such as the military, the police, or the border guard). However, the conduct of these specific Sochi Cossacks could nonetheless be attributable to Russia under the rule set out in Article 5 of the ILC Articles on State Responsibility:

Article 5 – Conduct of persons or entities exercising elements of governmental authority

The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

Russian domestic law, including federal and regional legislation and the specific agreement concluded regarding Sochi, quite clearly empowered the Cossack association to exercise elements of governmental authority, viz. the maintenance of public order. This is plain from the Russian laws, subsidiary legislation and the agreement examined in the Verzilov judgment.

Moreover, even if, in using force against Pussy Riot members, the Cossacks in question exceeded the authority given to them under Russian law, even if they committed a criminal offence under Russian law, and even if they acted contrary to express instructions given to them by their superiors, their conduct would still be attributable to Russia under the ultra vires rule codified in Article 7 ASR. This is because they were clearly acting in their official capacity and the ultra vires rule applies to Article 5 entities just like it applies to state organs. That’s it, analysis done, the whole thing is just completely clear, clean and uncontroversial, a textbook example of how Articles 5 and 7 ASR can apply together.

But that, as readers can imagine, is not what the Chamber of the European Court did. Instead of a reasonably straightforward application of the attribution criteria of general international law, as codified in the ILC Articles, the Court decided to improvise. And this is not because the Court was unaware of Articles 5 and 7 ASR – indeed, it quotes them in the ‘international law and practice’ section of the judgment and describes the ASR as having ‘codified principles developed in modern international law in respect of the State’s responsibility for internationally wrongful acts’ (para 56). Rather, the Court just goes its own way without ever saying why it needs to do that. Like so:

83. It remains to be determined whether the applicants are justified in claiming the State’s responsibility for their treatment by Cossacks under Article 3 of the Convention. The Court notes that the Government denied this, arguing that the Cossacks had acted in their private capacity and not in the performance of their duties to maintain public order.
84. It is a well-established principle of the Court’s case-law that a Contracting State will be responsible under the Convention for violations of human rights caused by acts carried out by its agents in the performance of their duties (see V.K. v. Russia, no. 68059/13, § 174, 7 March 2017, and Chernega and Others v. Ukraine, no. 74768/10, § 125, 18 June 2019). In order to establish whether a State can be held responsible for the unlawful actions of its agents outside their official duties, the Court needs to assess the totality of the circumstances and consider the nature and circumstances of the conduct in question (see Sašo Gorgiev v. the former Yugoslav Republic of Macedonia, no. 49382/06, § 48, ECHR 2012 (extracts)). Whether a person is an agent of the State for the purposes of the Convention is defined on the basis of a multitude of factors, none of which is determinative on its own. The key criteria used to determine whether the State is responsible for the acts of a person, whether formally a public official or not, are as follows: manner of appointment, supervision and accountability, objectives, powers and functions of the person in question (see V.K. v. Russia, cited above, § 175).
85. In the case of Đurđević the Court considered that an incident involving off‑duty police officers concerned allegations of police violence because there had been no other reason for them to intervene in the situation in question than in their capacity as police officers, with one of them identifying himself as such (see Đurđević v. Croatia, no. 52442/09, § 75, ECHR 2011 (extracts); see also Mižigárová v. Slovakia, no. 74832/01, § 87, 14 December 2010, in which the fact that a police officer was off duty, during questioning at a police station which ended with a detainee being shot with the officer’s service pistol, did not in itself rule out the State’s responsibility). In Sašo Gorgiev the Court found that a harmful act committed by a police reservist in a bar (a shot fired from a service gun endangering the applicant’s life) outside his official duties, at a time when he was supposed to be on duty and was in uniform, was imputable to the respondent State (see Sašo Gorgiev, cited above, § 52). The Court took into account the Government’s failure to inform it of whether any assessment of the police reservist’s fitness for being recruited and equipped with a weapon had been made by the national authorities (ibid., §§ 47-54). In cases involving civilian volunteers in a quasi-police function, factors such as whether the persons in question made use of their official position while committing the harmful acts and whether there was connivance or acquiescence in those acts by the authorities have been found relevant for dismissing arguments by the Government that the acts had been committed by those persons in their private capacity and for holding the State responsible (see, in the context of Article 2, Avşar v. Turkey, no. 25657/94, §§ 409-16, ECHR 2001-VII (extracts); Acar and Others v. Turkey, nos. 36088/97 and 38417/97, §§ 83‑86, 24 May 2005; and Seyfettin Acar and Others v. Turkey, no. 30742/03, § 35, 6 October 2009). Whether a State agent was on or off duty when committing harmful acts has not therefore in itself been decisive for the issue of the State’s responsibility.

There is a lot here that is conceptually problematic. First, that there is such a thing as being an agent of a state for the purposes of the Convention, rather than under applicable rules of general international law. Second, that such agency should be determined not on the basis of reasonably clear rules, but on the basis of a multitude of factors, none of which is determinative on its own. Third, the mixing of state organs, other agents (including those exercising delegated governmental functions), and the ultra vires rule into one big mush. Fourth, the description of the ultra vires rule as requiring an inquiry into the totality of the circumstances, rather than as an inqurity into the capacity with which the agent acted. All of this presents a needlessly complicated picture of questions that are reasonably straightforward under the international law of state responsibility. And all of this is based on several prior Chamber cases that were similarly muddled in their reasoning and similarly ignored the ILC Articles (for a more extensive discussion, see my article on special rules of attribution in international law at 376-382).

The Court then canvasses Russian law and its delegation of authority to the Cossacks (paras. 86-88) and concludes that:

89. As the Court has noted above, several members of the Kuban Cossack Host Association participated in the attack to stop the applicants from performing and recording their song, and at least two were wearing Cossack uniform and were therefore seen as officially exercising their duties in maintaining public order. There were clear indications that the Cossacks participating in the attack regarded the applicants’ performance as an anti‑social unlawful activity which had to be suppressed (see paragraph 79 above). It cannot be ruled out that the State’s prosecution of the Pussy Riot members two years earlier conditioned, at least in part, the Cossacks’ attitude (see Women’s Initiatives Supporting Group and Others, cited above, § 76, and paragraphs 5 and 24 above concerning the statements by Yu.S.).
90. All in all, there are sufficient elements to conclude that there was a direct connection between the Cossacks’ actions and their duties in maintaining public order, which the State had invited them to perform under its close control and supervision. This gives rise to serious reasons to consider, regardless of whether or not the Cossacks were formally on duty at the time of the attack, that the State should be held responsible for their attack on the applicants. (emphasis added)

Note, again, the muddling of two distinct issues – the basis of attribution (through state delegation or empowerment of private individuals by means of its domestic law) and the ultra vires rule. Note also the formulation ‘serious reasons to consider,’ a rather strange way to describe the Court making a legal holding. This is then further complicated by the Court switching to the language of positive obligations, including the state’s duty to prevent ill-treatment, in the specific circumstances in this case and more generally through proper regulation and training (paras. 91-94). This paragraph is particularly interesting in that regard:

91. Those reasons are further enhanced by the striking passivity of the police officers who arrived at the scene of the incident. While the evidence before the Court does not allow it to conclude that the police themselves witnessed the violence committed against the applicants (see paragraphs 15 and 31 above), that evidence does indicate that when the police arrived the attack was still continuing against other people, hostile and insulting remarks against the applicants were still being shouted, complaints were being made about the violence committed by specific attackers still present at the scene, in particular about the use of a whip against women, and at least one Cossack visibly holding a whip was present. Nevertheless, apart from an invitation to everyone to disperse, the police officers did nothing to make it clear that the use of force and abusive language was unacceptable and had to stop, and to arrest the attackers or at the very least to establish their identity. Such behaviour indicates connivance or acquiescence in the Cossacks’ attack on the part of the authorities. (emphasis added)

Note how the Court shifts in the last sentence from a mere failure to prevent scenario to connivance or acquiescence by state authorities, arguably a much higher, complicity-like threshold (on which again see my special rules of attribution article).

So, there we are. Instead of a fairly uncomplicated application of the rules set out in Articles 5 and 7 ASR, we have a dog’s breakfast of an attribution analysis. And all of this is being done by the Court while the ILC’s work is relegated to a background section of the judgment and goes entirely ignored in the analysis itself. Just to be clear, it’s not like the ILC Articles are gospel – they are not a formally binding instrument, and, despite their authority, states and courts can reasonably disagree with them. It’s just that if the European Court wants to disagree with the ILC it should say so, and  explain why that is necessary and justified on principled grounds. The particular problem of this case, and of the cases on which it relies, is that there actually is no good reason to disagree with the ILC (let alone to ignore it).

As for why this happened, well, I think we can probably say that this was the result of a multitude of factors, none of which was determinative on its own. Today most ECtHR judges, including those sitting on this case, don’t have a background in public international law. It’s difficult to reliably speak of Registry lawyers, especially those assigned to this particular case (I have no idea who they were), but the situation is likely not very different. I also don’t really know how the attribution issue was precisely argued by the parties, and in particular how they relied on the ASR. But, in the totality of the circumstances, this all likely meant that it was easier to write a judgment like this, by finding some obscure (and themselves misguided) prior Chamber cases to rely on in one big mush, instead of straightforwardly invoking and applying the ILC Articles and reaching the same result. The Court can do better and should do better, and it can look at the better parts of its own jurisprudence on how to do that – for instance, cases such as Carter v. Russia (applying Article 8 ASR) and Makuchyan and Minasyan v. Azerbaijan and Hungary (applying Article 11 ASR), both dealing with much more complex attribution issues than those at stake in Verzilov, and both showing how the ASR can effectively be used by the Court.